A Board Member’s Duties: What Not to Do

For over two decades, Thomas has engaged in a business litigation practice throughout Virginia, Maryland, and the District of Columbia. He has appeared in both federal and state courts on behalf of community associations on a wide range of issues, including discrimination and fair housing claims, director liability, premises liability (including mold claims) and personal injury claims. He has also litigated dog-bite claims and works with rescue societies. Thomas is a graduate of Yale University and Georgetown University Law School and is currently Of Counsel with the law firm of Whiteford, Taylor & Preston.

A Board Member’s Duties:

What NOT to Do

Aboard member owes a duty of loyalty and care to the association. This means more than being thoughtful and deliberate in making decisions and being considerate of the needs of the residents. It also means a healthy understanding of what not to do as a board member.

There is really one over-arching concern: a board member should not breach that duty of care owed the association. Rules and Procedures, confidentiality provisions, limits on authority – these are all in place to make sure that everything operates properly. Ignore that duty, and you throw a monkey wrench into the system.

Do Not Ignore Procedures

Both the governing documents and the statutes set forth specific procedures for scheduling meetings, changing rules, imposing fines, or raising assessments. The board ignores these requirements at its peril. If someone in the association is going to oppose it, ignoring the proper procedure, gives them one more reason to block the measure. They challenge the contract through an administrative complaint; or won’t pay the special assessment; or refuse to follow the new regulation created in the meeting. Enforcement is hard enough; you don’t need to add distractions.

Do Not Ignore Experts

Every Board member brings education and experience to the table. So, however, do those experts retained by the association,

and they should not be ignored. Did your most recent Reserve Study recommend building up the reserve fund? Don’t refuse

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the raise assessments, because you’ll end up without money for necessary repairs and a special assessment. Did your engineers find a serious structural problem? Don’t wave aside their advice because there will be some catastrophic failure. Did your lawyers tell you that some policy was unenforceable? It’s far better that you listen to them now, before you get the same ruling from a court after years of expensive litigation.

The duty of care means that you listen to all viewpoints, including those experts who have been specifically hired to assist the board. Even allowing for your own experience and intellect, don’t think that you always know better than the expert does.

Do Not Overstep Your Authority

Board members guide the property management company, decide on disputes and rules infractions in the community, and make policy decisions for the association. Trouble arises, however, when a board member takes matters into his/ her own hands. This could mean that he makes decisions without consultation with or oversight by the board. Remember, even the decisions of a subgroup of the board is reviewed by the rest of the board. When a board member goes rogue, however, that oversight is lost. There are cases where board members have: (1) threatened to impose outrageous sanctions for rules violations; (2) spent tens of thousands of dollars on community projects that the board hadn’t approved or budgeted for; or (3) dragged the association into questionable business deals.

In other cases, the board member might interfere where he doesn’t belong –conducting spot inspections of member homes for perceived violations, trying to do repairs in the common areas, or supervising the association employees. The last one is particularly troubling: a number of employment statutes can be violated inadvertently, creating liability for the association. In all three instances, however, both the validity of the action taken, and the overall authority of the board are called into question – and life gets harder around the neighborhood. The board should leave the property management, repairs and code enforcement to the appropriate employees or committees.

This, incidentally, is where term limits are useful. The longer a person serves on the Board, the farther they travel from “This is how things should be done” to “This is how we’ve always done things,” all the way to “We will do it my way, because I say so.” You get to that last stop, and the train has all but derailed.

Do Not Breach Confidentiality

The Executive session exists for a reason. Discussing confidential matters outside the confines of an executive session (including e-mails between members) not only betrays the trust placed in the Board, but opens the Association up to possible liability. The practice is especially dangerous if the Association gets involved in litigation. A privilege claimed for what is discussed in executive session may be lost if that information is disclosed to a third party. E-mails that discuss confidential matters can be disclosed through document production. At that point, the whole world will know what the board should have kept confidential.

This duty – unlike the others above – extends even after the member leaves the board. Thou shalt never, ever discuss in public what was discussed in executive session.

The duty of care has two sides: a positive and a negative. It is the obligation to give your best efforts on behalf of the community, and the prohibition against doing harm because of your actions. A good board member keeps both sides in mind at all times.